Leave Without Pay (LWOP) in connection with Office of Worker’s Compensation Claims (DOL OWCP) is a source of confusion for federal employees, as well as agencies. In our experience, this is largely due to a number of misperceptions of affected employees as well as agency confusion in administering the program, poor communication with employees and federal managers, and a disconnect between agency regulations providing for the administration of LWOP in connection with Office of Worker’s Compensation Claims. Further exacerbating the problems are the efforts by many agencies to distance local agency OWCP functions and administration from local human resources functions. However, those same agencies leave the “nuts and bolts” of leave administration, to the local human resources components without providing sufficient information, if any, regarding the status of the affected employee on an approved OWCP claim, particularly those on extended agency rolls. This is how a federal employee mistakenly remains on agency rolls for five years when they could have been removed from federal service easily after the first year.
Leave Without Pay (LWOP)
Leave Without Pay is a means whereby an agency can allow an employee to remain on agency rolls, while absent from work, without the need to use sick or annual leave. This is usually necessary (most common) because the employee may be out of leave. Agencies are afforded a wide range of latitude in determining whether to grant LWOP and are typically without obligation in this regard. One such instance in which agency discretion is somewhat limited is in matters of approved OWCP claims (FMLA is predominantly the other). However, even in situations where an employee is absent for legitimate reasons beyond his control (for example, medical incapacitation for duty), an agency can deny LWOP once the employee exhausts accrued leave, when there is no foreseeable end to the employee’s absence and the absence is a burden to the agency. Bologna v. Department of Defense, 97 FMSR 5037 , 73 MSPR 110 (MSPB 1997), aff’d, 135 F.3d 774 (Fed. Cir. 1997); Calderon v. Department of Homeland Security, (MSPB AJ 2007).
LWOP in Connection with OWCP Claims
An employee on an approved OWCP claim is generally entitled to LWOP in connection with an approved claim. The granting of Leave Without Pay in such instances is rarely the issue and the LWOP authorization generally protects the employee from a charge of AWOL (Absence Without Leave). However, an agency is not prohibited from implementing an adverse action predicated upon leave-related charges pending a final determination from OWCP, for example, if the affected employee does not obtain LWOP approval. Sambrano, 116 M.S.P.R. 449. Also, under regulations issued by the Office of Personnel Management (OPM), an employee absent based on a compensable injury may be carried on leave without pay or separated unless the employee elects to use sick or annual leave. See, 5 C.F.R. 353.106 § (b); see also, 5 U.S.C. 8151 § (b)(1). But doing so, within the first year of a compensable claim, is considered risky and most agencies will not propose such an action absent unusual circumstances. Either way, an agency is not required under any circumstances to retain an employee on agency rolls for an indefinite period. Stith v. Department of Housing & Urban Development, 21 M.S.P.R. 328, 331-32 (1984).
Instead, the challenge concerning LWOP in connection with OWCP, in a practical sense, typically manifests in the local administration of LWOP in such circumstances; specifically, the supervisor, timekeeper, OWCP Specialist, employee, and human resources all coordinating various aspects of the LWOP from Continuation of Pay (COP), dates of LWOP, approval, tracking, extension requests, and impact on employee benefits.
Note- this article does not address Continuation of Pay (COP). The Federal Employee Compensation Act provides an employer must continue the regular pay of an employee during any periods of resulting disability, up to a maximum of 45 calendar days in which the employer, not the Office of Workers Compensation, pays the COP.
We often hear from employees being removed based on AWOL charges covering some period of time in which the employee was either in an approved OWCP claim status, within the first year, or pending an initial claim status adjudication. Upon review, many of the cases would not have occurred had the employee not remained passive. For example, in one fairly recent case we handled, an employee refused to provide medical information to their supervisor requesting LWOP in connection with an OWCP claim, believing she only had to provide such information to the OWCP Specialist. This belief was untrue.
Whether in an approved OWCP status or pending adjudication, the individual employee typically maintains an obligation to request, and obtain, LWOP in connection with the OWCP claim, using local agency processes and regulations. Many agencies treat this as a distinct responsibility. Either way, the affected employee should make no assumption the granting of LWOP subsequent to filing an OWCP claim is automatic. The employee should submit a request for LWOP with administratively acceptable medical information supporting the need for LWOP and indicating the request is in connection with an OWCP claim.
With an approved request, the agency should “journalize” the approved LWOP via an SF-50 for a predetermined amount of time. Once that time elapses, the employee must repeat the request and approval process (specific to your agency) and ensure approval is obtained for an extension of the LWOP, if needed. Some agencies will approve a request for a month at a time while others will approve longer absences. There is no single prescription in this regard. An approved longer absence on LWOP, later determined to not be needed, is easily corrected by simply returning the employee to duty (RTD).
Finally, employees must understand their benefits may be adversely impacted and/or they may accrue a debt to the agency concerning premiums. As each case is fact dependent, we could not possibly cover every aspect here. However, employees should ensure they contact their local human resources office for guidance. This is usually handled by the processing and records or benefits section of your local Human Resources office.
As with any aspect of employment affecting pay and benefits, it is important federal employees actively, and aggressively, engage their situation. Never presume “things are being taken care of.” There are many moving pieces and often the only link between all the moving pieces is the affected employee. Specifically, you.